Attempts to promote Sri Lanka’s executive president as an absolute ruler continued this week through two statements (Daily News June 14, 2006) made by persons very close to the government. First, the illegally appointed Chairperson of Sri Lanka’s Human Rights Commission reportedly told the press he would seek a meeting with President Rajapakse, requesting him to issue a “Presidential Mandatory Order” to government agencies regarding non-compliance with orders of the Human Rights Commission. The second was by the Minister for Disaster Management and Human Rights, who is reported to have spoken about the President appointing a Parliamentary Select Committee to look into the lapses of the 17th Amendment to the Constitution.
The phrases “Presidential Mandatory Order” and “the President appointing a Parliamentary Select Committee” need to be closely examined. When the Asian Human Rights Commission (AHRC) asked a senior constitutional lawyer what was meant by a Presidential Mandatory Order, his response was, “What on earth is this? There is nothing in law like that.” The coinage of the term by a former Supreme Court judge and current Chairperson of the Human Rights Commission reminds us of the sheer abuse of language for political purposes mentioned by George Orwell.
What is the distinction between mandatory orders of the president and non-mandatory orders of the president? The word mandatory has been added to attach significance to the known “Presidential Orders”. What orders can the President make if government agencies do not comply with the orders of the Human Rights Commission? Are Presidential Orders more legally binding than orders of the Human Rights Commission? The Human Rights Commission of Sri Lanka Act (Act No. 21 of 1996) does not refer to any orders by the President. According to section 15 of the act, “The HRC recommend to the appropriate authorities, that prosecution or other proceedings be instituted against the person or persons infringing such fundamental right.”
It is the attorney general who has the authority to implement any recommendations to prosecute. The president does not have any power to make orders, mandatory or otherwise, to the attorney general. If the attorney general is not cooperating with the Human Rights Commission, the Commission can inform the Parliament and the public. The Commission can also go before the Court of Appeal by way of a writ to compel the attorney general to act. One of the grounds on which the AHRC objected to the illegal appointment of the Chairperson of the Human Rights Commission was that he is unaware of the modern developments in human rights law. His recent statement regarding the Presidential Mandatory Order confirms his lack of human rights understanding, as well as a lack of serious interest in trying to resolve the problems facing the Human Rights Commission.
The AHRC also sought the view of a former parliamentarian and expert on parliamentary affairs on the idea of the president appointing a Parliamentary Select Committee. The reply was that this is sheer nonsense, followed by “What is happening in this country?”
The appointment of select committees is entirely the privilege of Parliament and is done according to the standing orders of the Parliament. It is the speaker of the house and leaders of political parties who are responsible for appointing such committees. The reference to the president appointing such a committee is an assault on the supremacy of Parliament. (See AHRC AS-141-2006 for more discussion).
The assault on the entire constitutional process by President Rajapakse’s appointments to the Court of Appeal, Supreme Court and several public commissions has also been discussed earlier (see AHRC AS-139-2006). Under these circumstances, Presidential Mandatory Orders take on a different meaning: rule by presidential decree instead of by law. In other words, the use of absolute power.
